The Keys To An Effective Medical Malpractice Defense

Transcription

1 The Keys To An Effective Medical Malpractice Defense By Thomas M. O Toole, Ph.D. Some research has shown, while as little as 1% of the lawsuits filed each year in the United States actually make it to trial, of those that make it to trial, medical malpractice claims lead the group. Perhaps it s just a numbers game since one commonly-cited study estimates that between 44,000 and 98,000 people die and another 300,000 are injured each year as a result of medical errors. Once in trial, research shows plaintiffs with medical malpractice claims win approximately 27% of the time, but the median damage award associated with these wins is approximately sixteen times higher than awards in other tort trials. Estimates put the total annual costs of defending healthcare providers at over $500M. Medical malpractice litigation is unique. Unlike nearly every other litigation type, every trier-of-fact, whether it be a jury, judge, mediator, or arbitrator, 1

2 has strong, personal, case-related experiences. In other words, every trier-offact has had interaction with doctors and healthcare providers that shape his or her understanding and beliefs about the nature and quality of healthcare services. Furthermore, the cases most likely to make it to trial are those involving significant or permanent injury or death, which magnifies the psychological and emotional impact on the trier of fact. In light of these complicating factors and the tremendous exposure to defendants in malpractice litigation, this article focuses on two key steps for effectively managing a medical malpractice defense. Preparing Defendants To Present As Competent and Caring Healthcare Providers Defense witnesses are the case in medical malpractice trials. In many respects, medical malpractice verdicts come down to whether or not jurors like the defendant doctor. In other words, for jurors, the decision about whether or not to award significant damages in a malpractice case boils down to watching the defendant s testimony and asking themselves whether or not the defendant is the type of healthcare provider they would want providing their care. If the answer is yes, the defendant should fare well. If the answer is no, there is little else the defense can do to prevail at trial. Medical malpractice verdicts come down to whether or not jurors like the defendant doctor. This is where the fact that every trier-of-fact has had their own personal healthcare experiences matters most. Healthcare provider relationships are about trust. According to one national poll, only 41% of Americans are confident that they could get information about the advantages and disadvantages of different treatment options. Only 37% are confident they could get information about a doctor s training, certification, and experience. 30% expressed confidence in their ability to get data on the number and success rate of procedures performed at a hospital. Finally, only 20% are confident about obtaining the number of disciplinary actions taken against a doctor or hospital. Put simply, many Americans do not feel that they have access to the necessary information to make informed decisions about their healthcare providers and, even if they did, some research suggests this is not the information such decisions would be based on anyways. 2

3 Instead, most Americans make decisions about their healthcare providers based on gut feelings about the person based on their interactions. In other words, the typical patient meets with a doctor, watches and listens, and makes an internal decision about the doctor s likeability and trustworthiness. Likeability and trustworthiness, in this sense, are signs of quality. This is why many healthcare institutions have focused so much on communication training over the last decade. Research shows improved communication between doctors and patients can significantly reduce the likelihood of malpractice litigation. In fact, some research suggests poor communication is the main reason many malpractice lawsuits are filed. Communication skills are equally if not more important in medical malpractice litigation where a doctor or healthcare provider must testify. Jurors make the same types of gut feeling determinations about doctors, but in litigation, the only opportunity for interaction is the testimony. Unfortunately, deposition and trial testimony often present more hurdles to witnesses than opportunities. A 2012 National Institute of Mental Health study found 75% of Americans suffer from communication anxiety associated with public speaking. Other surveys show many Americans rate public speaking as their greatest fear, just ahead of dying in a plane crash and drowning. Studies show communication anxiety leads to perceptions of the speaker as less attractive, less intelligent, and less capable. Other studies show a strong negative association between this anxiety and the overall cognitive performance of the speaker during the communication act. Communication anxiety even leads to physical reactions in the speaker, such as increased blood pressure, heart rate, numbness, shortness of breath, heart palpitations, sweating, stomach distress, and nausea. Testimony only compounds these problems, bringing its own unique combination of stress, complexity, and communication hurdles. Witnesses can be blinded by self-interest, worried about screwing up or losing the case, intimidated by appeals to the authority of the judge, distracted by the tactics of opposing counsel, or simply confused by the process or case complexities. There is a large body of research that shows the questioning techniques 3

4 deployed in cross-examination can confuse and mislead a witness, ultimately undermining the accuracy of the testimony. These barriers often interact to undermine the credibility of the witness. For example, studies in nonverbal communication have repeatedly shown, when a speaker s verbal message conflicts with his or her verbal message, the nonverbal message prevails. In other words, a nervous witness who provides good substantive answers may still prove detrimental to the case. In my own practice, I ve seen corporate witnesses whose substantive answers were near perfection, but whose nonverbal performance on the stand erased any benefit brought by the perfect answers. In these situations, jurors who dislike a witness because of his or her nonverbal performance will explain away the good answers by arguing he or she is lying, a talking head, or something else. Conversely, I ve seen witnesses who screwed up on the substance, but came across as very likeable. In these instances, the jurors did not notice or did not care about the screw ups. For example, in a medical malpractice case, jurors may let a likable health care provider off the hook if the provider comes across as the type of person the jurors would want to receive health care from. Consequently, deposition and trial testimony preparation are vital components of a successful medical malpractice defense. Deposition and trial While judges and juries are strongly influenced testimony by the performances of key witnesses in any preparation are vital litigation type, medical malpractice litigation is unique because the performance of the components of a defendant becomes symbolic of the quality of successful medical care provided to the plaintiff. This substantially malpractice defense. raises the bar for medical malpractice defendants and highlights the need for effective witness preparation sessions in advance. Practice should be the primary focus of any witness preparation session. No less than two hours should be devoted to pure practice with focus on both the nonverbal presentation and the substantive issues. For example, rather than telling a witness how to deal with a particular topic, ask him or her questions about the topic while practicing and see how he or she deals with it. The end result will be a significant improvement in the overall quality of your witness s testimony. In short, practice sessions are critical because they provide witnesses with the tools they need to overcome common testimony hurdles 4

5 and arm witnesses with confidence in their ability to successfully navigate the otherwise cumbersome process. De-Selecting High-Risk Jurors During Jury Selection Another unique aspect of medical malpractice litigation is the role that jurors experiences and attitudes play in the formulation of their opinions about the case. In all of the jury research I ve conducted over the years in medical malpractice cases, one consistency has stood out the most: there tends to be little to no changed between pre and post-deliberation leanings. In other words, jurors make up their mind about medical malpractice cases quickly and stick with that opinion. From a jury consultant s perspective, when this happens, it s a clear sign that the case is mostly about jury selection. This shouldn t be surprising. Personal experiences exert significant influence on how we make sense of things in our life and, as previously noted, medical malpractice is one of those few areas of litigation where every juror brings case-related personal experience to the table. Jury selection is a fairly simple and straightforward process that has been clouded in pop psychology, gimmicks, and other fatally-flawed techniques. The name itself is a misnomer since the process is really about de-selection. Research has overwhelmingly shown that experiences and attitudes are the best predictors of human behavior. Demographics can be useful at times, but demographics are only meaningful to the extent that we assume people of similar demographics have similar experiences and beliefs. Consequently, it is more reliable to set demographics aside and get to the core issues. The key elements of an effective jury selection strategy are the identification of experiences and attitudes that make a potential juror high-risk and the crafting of voir dire questions that make potential jurors comfortable divulging these experiences and attitudes. Any strategy that departs from these core components is an inefficient use of valuable and limited time and risks empanelling jurors that may be the death knell for your client during deliberations. 5

6 Some attorneys express discomfort with questions designed to reveal negative attitudes and experiences in voir dire since these topics might taint the jury. For those potential jurors who do not have these negative attitudes or experiences, a few moments in voir dire are not going to suddenly change their mind. And if the potential juror is the type of person who does change his or her mind based on a few random comments during voir dire, he or she is also the type or person who will change his or her mind a few more times over the course of trial. But more important, for those potential jurors who have negative attitudes or experiences, there are two opportunities to discuss them: in voir dire when the attorney can do something about it or in deliberations when it s out of the attorney s control. Naturally, most will agree that it s best for the discussion to take place during voir dire. Finally, some attorneys prefer to spend voir dire trying to sell their case to the potential jurors. This is a terrible strategy for a variety of reasons. First, if an attorney is successful at persuading potential jurors, all he or she has done is flag that potential juror for the other side as a strike candidate. I witness this every time I pick a jury. The opposing counsel gets up, sells his or her themes, and gets some potential jurors nodding along with him or her in agreement. In those moments, the opposing counsel has provided extraordinarily valuable data to me about how to prioritize the peremptory strikes. The reality is that there is no research that shows jurors are persuaded during voir dire, which makes sense since jurors have no context for the case at this point of the trial. Instead, selling the case in voir dire actually detracts from the impact of opening since opening is essentially the second time the jurors will have heard your theory of the case. The art of jury selection is knowing what experiences and attitudes create risk for your client and crafting voir dire questions that make potential jurors comfortable telling you about these experiences and attitudes. The process really is that simple. Concluding Thoughts Witness preparation and strategy development for jury selection in medical malpractice cases can be handled in-house or the client and trial team can bring in outside expertise by hiring a jury consultant. Fortunately, witness preparation and jury selection are two low-cost services offered by jury consulting firms. I ve had clients ask me about the merits of jury research in 6

7 medical malpractice cases. While there are some cases that are unique enough to warrant the insights that jury research provides, most do not. I ve often walked out of medical malpractice mock trials and the end of the day, feeling like I learned what I already knew: that the case is going to be about the defendant s performance on the stand and about jury selection, not so much about the development of a sophisticated case strategy. I don t mean to suggest that strategy development is not important, but medical malpractice is one of the unique litigation types where most cases boil down to jury selection and the quality of witnesses. About the Author Thomas O Toole, Ph.D., is President and Consultant at Sound Jury Consulting. He has practiced across the nation for over ten years in nearly every litigation type. He has consulted on matters as small as low exposure medical malpractice and as large as bet-the company MDL class actions and billion dollar environmental claims. He received his Ph.D. in litigation psychology and communication at the University of Kansas. His dissertation focused on the how jurors attribute fault in medical malpractice litigation and he has published extensively on the subject. Learn more about Sound Jury Consulting at Contact the author at 7

Medical Malpractice VOIR DIRE QUESTIONS INTRODUCTION: Tell the jurors that this is a very big and a very important case. Do a SHORT summary of the case and the damages we are seeking. This summary should

JUROR S MANUAL (Prepared by the State Bar of Michigan) Your Role as a Juror You ve heard the term jury of one s peers. In our country the job of determining the facts and reaching a just decision rests,

: Crossing the Finish Line First Cynthia R. Cohen, Ph.D. Verdict Success Manhattan Beach, CA THE STARTING LINE: DETERMINING YOUR GOALS Mock trials, often considered expensive because of the professional

Scaled Questions During Jury Selection By: Ben Rubinowitz and Evan Torgan One of the most crucial tasks a trial attorney must undertake is selecting a pool of jurors that will view her client's case in

OPENING STATEMENT FROM THE DEFENSE PERSPECTIVE BY JAMES C. MORROW MORROW, WILLNAUER & KLOSTERMAN, L.L.C. 53--1 Where Voir Dire is an opportunity to give the jurors an outline of your themes, opening statement

Maximizing Strikes for Cause MAXIMIZING STRIKES FOR CAUSE IN CRIMINAL CASES BY ROBERT R. SWAFFORD I. INTRODUCTION This paper will introduce an approach to jury selection that is radically different from

VETTING THE EXPERT---YOURS AND THEIRS Too often an attorney will retain an expert on the advice of another attorney or based on a limited amount of time spent searching for the expert. The most important

Factors Affecting Jury Damages Awards Decisions By Dorothy K. Kagehiro, Ph.D. The use of experts in federal trials has remained fairly consistent across time. In a 1998 survey of 303 United States District

CHAPTER 24 DEPOSITION GUIDANCE FOR NURSES I. INTRODUCTION With the number of personal injury and healthcare-related lawsuits increasing each year, at some time in your professional career as a nurse, you

Our Purpose A jury s verdict is based on it s perception of the witnesses and evidence. Understanding jurors attitudes and perceptions about your case can reduce your risks at trial. Our purpose at SheldonSinrich

Reptile Theory: A Tail of Two Reptiles Julia B. Semenak If phrases like safety rules and community safety sound familiar, you have likely encountered a plaintiff s lawyer using the strategies set forth

DEPOSITION LETTER Dear Client: The attorney for the defendant has requested your deposition as part of the discovery which you must provide in your lawsuit. A deposition is the defense attorneys' opportunity

The Current Climate For Today s Nursing Home Defendant by Jury awards $20 million in negligence suit against nursing home. Largest verdict in County history, $21.5 million, returned against nursing home.

A Guide to Analyzing Jury Questionnaires in Civil Cases by Lisa Blue, PhD and Robert Hirschhorn, Esq. Lisa Blue is an attorney specializing in toxic tort litigation with the law firm of Baron & Budd, P.C.

Working with the Physician s Counsel in Defending Off-Label Use Litigation By Gerald P. Schneeweis Morris Polich & Purdy LLP Working with the Physician s Counsel in Defending Off-Label Use Litigation By

The Defense Lawyer s Tool Kit For Working With Medical Experts Jessie L. Harris You may have to play catch-up, but you can play it to win. Jessie L. Harris is a trial lawyer and Member in the Seattle office

Consumer Awareness How to Keep From Getting Ripped Off by Big Insurance Provided as an educational service by: Anthony D. Castelli, Esq. Concentration in Auto and Work Related Injuries (513) 621-2345 ATTENTION!!!

Pre Trial Checklist Three months before trial: Set trial date Look for conflicts Determine who will work on the trial Complete discovery Decide on expert witnesses Six weeks before trial Establish work

Your Personal Guide To Your Personal Injury Lawsuit Know How To Do Things Right When You ve Been Wronged You have questions. And most likely, you have a lot of them. The good news is that this is completely

Dealing With Weaknesses and Maintaining Credibility By Ben Rubinowitz and Evan Torgan While many trial lawyers focus on the credibility of their witnesses, a truism remains: No one s credibility is more

Trying a Wrongful Death Case: Voir Dire as a Bridge to Summation By: Ben Rubinowitz and Evan Torgan Damages in a wrongful death case are fraught with complex issues and legal challenges. While it is easy

Life as a Medical Malpractice Attorney A medical malpractice case lands on your desk. What is your first thought? What is your plan? If you re stumped or not sure where to begin, studying the anatomy of

VOIR DIRE FROM THE DEFENSE PERSPECTIVE BY JAMES C. MORROW MORROW, WILLNAUER & KLOSTERMAN, L.L.C. 44--1 You have been sitting in your chair at counsel table for a good part of the day, perhaps making an

79 Wall Street Huntington, NY 11743 800.660.1466 631.425.9775 718.220.0099 631.415.5004 (fax) A Consumer Guide What is a Deposition and How Does It Work in a Personal Injury Case? A key component in many

I would first like to extend to you my appreciation for considering Reed & Reed for your mediation requirements. In attempting to resolve your dispute through mediation you have taken a major step in the

How to Prepare for your Deposition in a Personal Injury Case A whitepaper by Travis Mayor, Attorney If you have filed a civil lawsuit in your personal injury case against the at fault driver, person, corporation,

HOW JURIES CALCULATE MISSOURI PERSONAL INJURY AWARDS Leaving the final decision on compensation in the hands of a jury is always a risk, one that most both parties in a personal injury case often prefer

A Citizen s Guide to the Criminal Justice System: From Arraignment to Appeal Presented by the Office of the Richmond County District Attorney Acting District Attorney Daniel L. Master, Jr. 130 Stuyvesant

Top Ten Ways to WRECK Your Disability Claim Thank you for downloading our publication of the Top Ten Ways to Wreck Your Disability Claim. If you re taking the time to review this information, it s likely

Part I: General Information How was I chosen for jury service? THE ANSWER BOOK FOR JURY SERVICE Potential jurors are selected randomly by the jury commissioners using lists designated by the courts, such

IN THE SUPREME COURT OF FLORIDA CASE NO. SC05-1150 IN RE: PETITION TO AMEND RULE 4-1.5(F)(4)(B) OF THE RULES OF PROFESSIONAL CONDUCT / COMMENTS OF DAN CYTRYN, ESQUIRE OF LAW OFFICES CYTRYN & SANTANA, P.A.

CITATION Sanford SR: Informed consent: The verdict is in. ASA Newsletter 70/(7):15-16, 2006. FULL TEXT While the anesthesia community continues to debate the importance and manner in which informed consent

OPENING STATEMENTS Introduction The opening statement is a most important part of trying a lawsuit. Many lawyers do not treat the opening statement with the importance it deserves. Many opening statements

Chapter 4 Legal Ethics Yes. You read that right legal ethics. Har de har. Go ahead. Get it out of your system. How about this one? Why do scientists prefer using lawyers over lab rats? There are some things

Common Myths About Personal Injury and Wrongful Death Cases 1 By B. Keith Williams There are several myths about accident cases and the attorneys that handle them. It is important to keep these myths in

Medical Malpractice Litigation What to Expect as a Defendant Being named as a defendant in a malpractice suit may be your first exposure to civil litigation. You will probably wish it would just go away.

ATTORNEY HELP CENTER: MEDICAL MALPRACTICE The healthcare industry has exploded over the last thirty years. Combined with an increasing elderly population, thanks to the Baby Boomer generation, the general

Mitigating Legal and Ethical Risks Patrick O Rourke, JD Julie Altmix, RN, BSN University of Colorado Denver School of Medicine Conflict of Interest We have no conflicts of interest, commercial or otherwise,

Question 5 Attorney mailed a professional announcement to several local physicians, listing his name and address and his area of law practice as personal injury. Doctor received Attorney s announcement

If you have been sued as a defendant in a civil case...keep reading. Court procedures can be complex. This brochure was developed to help Ohioans who are considering representing themselves in court. It

TOP 10 MOST COMMON MISTAKES MADE IN HANDLING YOUR OWN INJURY CLAIM More times than not, your personal injury claim will be a battle with an insurance company. A highly trained adjuster will be assigned

WHAT IS LEGAL MALPRACTICE IN CALIFORNIA? A client who sustains harm as a direct result of legal malpractice can file a civil lawsuit against the attorney who was responsible for causing that harm. MICHAEL

Divorce Mediation Myths Debunking divorce mediation myths: Facts about the mediation process. Myth: Mediation allows one spouse to dominate another. Fact: A good mediator pays close attention to the power

INFORMAL CUSTODY TRIAL: A Child-Focused Alternative Hon. Benjamin R. Simpson Judge of the Magistrate s Division, Kootenai County Idaho law requires the determination of child custody based upon the best

Learning How To Be Your Own Best Advocate The Impor tance of Medical Evidence in Personal Injur y Claims Managing Your Medical Treatment After An Accident By Chris Davis, Attorney at Law Davis Law Group,

STEPS IN A TRIAL Note to Students: For a civil case, substitute the word plaintiff for the word prosecution. A number of events occur during a trial, and most must happen according to a particular sequence.

7 Questions to Ask a NY Personal Injury Attorney Before You Ever Walk Into His Office 1. Have you handled my exact type of case before? 2. Do you have free books, reports and videos that teach me how this

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) Case No. 09-00296-03-CR-W-FJG ) ROBERT E. STEWART, ) ) Defendant.

Table of Contents Introduction 3 Why Not Settle With the Insurance Companies 4 What to do First 7 Hiring a Personal Injury Lawyer 11 How Much is My Claim Worth? 14 What if I have a Pre-Existing Condition?